WAYS TO GET OFF THE SEX OFFENDER REGISTRY

There have been two recent developments which potentially relieve an individual from a duty to register under Maine’s Sex Offender Registration Law, 34-A M.R.S.A § 11201 et seq. “SORNA”). On September 11, 2009, new legislation went into effect which allows certain individuals to apply to be deregistered. On December 22, 2009 Maine’s Law Court issued an opinion in the case of State v. Letalien, 2009 ME 130 which expanded the category of those not required to register. I. LEGISLATIVE CHANGES On September 11, 2009 the following legislation went into effect in response to legislative concerns about the ex post facto nature of the SORNA scheme: 1. Exception. Notwithstanding section 11202, a person sentenced on or after January 1, 1982 and prior to June 30, 1992 is not required to register under this chapter if that person submits to the bureau, in a form to be determined by the bureau, documentation to establish the following: A. The person was finally discharged from the correctional system prior to September 1, 1998; B. The person's convictions do not include more than one Class A sex offense or sexually violent offense or more than one conviction in another jurisdiction for an offense that contains the essential elements of a Class A sex offense or sexually violent offense, whether or not the convictions occurred on the same date; C. At the time of the offense, the person had not been previously sentenced in this State as an adult or as a juvenile sentenced as an adult for a sex offense or a sexually violent offense; D. At the time of the offense, the person had not been previously sentenced in another jurisdiction as an adult or as a juvenile sentenced as an adult for an offense that contains the essential elements of a sex offense or a sexually violent offense; E. Subsequent to the commission of the offense, the person has not been convicted of a crime under Title 17 or Title 17-A in this State that is punishable by imprisonment for a term of one year or more; and F. Subsequent to the commission of the offense, the person has not been convicted under the laws of any other jurisdiction of a crime that is punishable by a term of imprisonment exceeding one year. This paragraph does not include a crime under the laws of another jurisdiction that is classified by the laws of that jurisdiction as a misdemeanor and is punishable by a term of imprisonment of 2 years or less. 2. Duty continues. A person's duty to register continues until the bureau determines that the documentation meets the requirements of this section and any rules adopted by the bureau. 3. Costs. A person who submits documentation under this section is responsible for the costs of any criminal history record checks required. 4. Restoration of registration status. The registration obligation of a person sentenced on or after January 1, 1982 and prior to June 30, 1992 that is discharged pursuant to this section is restored by any subsequent conviction for a crime described in subsection 1, paragraph E or F. 34-A M.R.S.A. § 11202-A One key difference between the relief from the duty to register in 34-A M.R.S.A. § 11202-A and the Law Court’s decision in Letalien, described below, is that the registrant must take affirmative actions to deregister. II. State v. Letalien On December 22, 2009 the Law Court issued an opinion in the matter of State v. Letalien, 2009 ME 130 which had significant impact in determining who is subject to registration. The Court specifically acknowledged the extensive legislative and judicial history of sex offense registration in Maine. The Court spent considerable time analyzing the ex post facto arguments against various forms of SORNA statutes which had been previously upheld in various U.S. Supreme Court and Maine Law Court decisions. The Law Court ultimately concluded in Letalien that Maine’s SORNA statute was unconstitutional as applied to certain defendants. The Court ultimately concluded that the SORNA statute was at least in part unconstitutional as an ex post facto law as applied to certain offenders: To summarize, we conclude: (1) For ex post facto purposes, SORNA of 1999 is properly evaluated on its face, and not in relation to how it has been applied against any individuals. Our suggestion to the contrary in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552, is overruled. (2) The prohibition on ex post facto laws in the Maine Constitution, Me. Const. art. I, § 11, is coextensive with the corresponding prohibition in the United States Constitution, U.S. Const. art. I, § 10, cl. 1. (3) The retroactive application of the lifetime registration requirement and quarterly in-person verification procedures of SORNA of 1999 to offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, without, at a minimum, affording those offenders any opportunity to ever be relieved of the duty as was permitted under those laws, is, by the clearest proof, punitive, and violates the Maine and United States Constitutions’ prohibitions against ex post facto laws. [¶64] Because the Legislature, in its upcoming session, may wish to consider revisions to SORNA of 1999 to address the registration of offenders originally sentenced subject to SORA of 1991 and SORNA of 1995, we postpone the effective date of our mandate to March 31, 2010. See M.R. App. P. 14(c). State v. Letalien, 2009 ME 130 (emphasis added).

Comments

[impotenta]

Well... if you are interested i can send you some documents from a relative case from here (Romania)... where there is no law for the crime :(

[Joe]

That seems like a lot of hoops to jump through, but at least they are expanding the group of people who don't have to register as sex offenders. Not all of them deserve the continued punishment that being a registered sex offender means.

[rodsmith3510]

and i think at that point the govt has in fact steped outside it's authority and operating illegally and in fact as a criminal. I dont' know about where you are but in my area of the country you have every legal right to shoot criminals caught in the act.

[rodsmith3510]

would have been nice if they had showed some real guts and canned it from the beginning. If it's illegal it's illegal NOW not 3 months from now after they give the govt time to pencile whip it and make them go back to court all over gain.

[Gallowsman]

The really sad part of this is having sit in on many of the recent Public Safety Hearings on this is watching the Asst. AG and Committee in collusion attempting to circumvent the Supreme Court ruling by "Word Smithing" the new law so they can keep Lifetime Registration in hopes the Court will accept their "Good Intentions" towards fixing it. The bottomline by the committee is that NO ONE will be getting off lifetime registration, period. Even Latalien will have to register for life under the current Public Committee definition if the court accepts it. Though I interpeted the Supreme Courts ruling much the same as the AG Mills, that registration requirments could not exceed those that exsisted at the time of sentencing the Committee is playing "Let's Make A Deal" with the Court. Several Legislators even asked the Asst. AG. if they could promise the court they would work on it in the future to which the Asst. AG no. At the last hearing I attended the Committee was keeping Lifetime Registration, no if ands or buts. They would for go the 90 day in-person verifcations and instead go to verication by mail where one must return by mail a new picture and information. (To me this is still a problem forcing RFSOs to remain home under house arrest waiting for that letter to fill out and return or go to prison.) Then to get off the registry an RFSO would have to apply for a waiver, but they are going to make the New Waiver" so restrictive and burdensome both physcially and financially no one but the most wealthy could meet its requirements, such as being evaluated for risk by the State at the offenders expense. Pass a state approved Lie Detector test, again at the offenders expense. (But again the AG Mills already told them that ANY wavier they recommend could not be more restrictive or burdensome than what was in place at the time of sentencing.) And to top it off the RFSO could have NO previous crminal offenses on their record of ANY kind to qualify for a Wavier.

What will be interesting as this ruling is based on the 1992 to 1999 Registrants is how it will be applied to the 1982 to 1992 convictions such as mine. "Registration requirements cannot exceed those in place at time of sentencing." There was no registration in 1984 for Sex Offenders and thus no wavier either.

Wished I had the money to be able to afford some Justice.

Anyway. What I got a feeling is going to happen is the Court will reject the Legislature's Good Intentions and then turnaround and grant them another "STAY" and this one will be indefinate until they resolve the issue but in the mean time they get to keep enforcing an Unconstitional Law.